Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR224238
Marchiano, P.J.
Defendant Alfred E. Burch Jr. entered a negotiated plea of no contest to attempted first degree burglary (Pen. Code §§ 459, 664) in exchange for dismissal of a murder charge and firearm enhancement. He was placed on probation. One of the probation conditions is that he pay restitution to the family of the murder victim for medical and funeral expenses. Defendant contends the trial court lacked authority to impose that probation condition because the court did not take a Harvey waiver on the murder charge. (People v. Harvey (1979) 25 Cal.3d 754 (Harvey).) We disagree and affirm.
All statutory references are to the Penal Code.
I. FACTS
We take the facts from the probation report and the prosecutor’s submission pursuant to section 1192.7.
On May 21, 2005, defendant and four others went to the home of Jason Morgan to get some marijuana. Defendant waited in the adjoining yard while the other four went to the back door. Defendant heard two shots and saw three of the four fleeing, followed by the fourth who was holding a revolver. The fourth person, apparently the shooter, said, “Oh shit” to defendant and kept running. The shooter had previously told defendant that “a friend,” presumably Morgan, “owed him” some marijuana. Morgan died of a gunshot wound to the chest.
Defendant admitted that he ran from the scene and discarded the .22 revolver he was carrying. The People concluded that there was no evidence that defendant entered the victim’s back yard, from which the shots were fired. The People further concluded that defendant “clearly did not fire [his revolver] on this occasion, and there is no evidence that he brandished it or used it in any way.” At the time of defendant’s no contest plea, the district attorney told the court that “we . . . have DNA evidence that pretty conclusively establishes that [defendant] was not the person who fired the [fatal] shot.”
Defendant had been initially charged with murder while armed with a pistol. (§§ 187, subd. (a); 12022, subd. (a)(1).) After the district attorney reached his conclusion that defendant did not shoot Morgan, defendant entered a negotiated plea of no contest to attempted first degree burglary (§§ 459, 664) in exchange for dismissal of the murder charge and the firearm enhancement.
The trial court sentenced defendant to three years’ formal probation. One condition of probation is that defendant pay restitution. Morgan’s family had made a restitution claim of $8,301.53 for medical and funeral expenses. The court reserved jurisdiction to determine the exact amount of restitution.
II. DISCUSSION
Defendant contends the restitution order exceeds the trial court’s jurisdiction because the court failed to obtain a Harvey waiver on the murder count. We disagree for the following reasons.
Generally, a Harvey waiver permits the sentencing judge to consider facts underlying counts dismissed pursuant to a plea bargain. In other words, the defendant agrees that he can suffer adverse sentencing consequences based on dismissed counts. (Harvey, supra, 25 Cal.3d at p. 758; People v. Goulart (1990) 224 Cal.App.3d 71, 80 (Goulart).) But Goulart holds that a Harvey waiver is generally not required for a restitution order, because it “is not a penal consequence, it is a condition of probation.” (Goulart, supra, at p. 80.)
Defendant relies on section 1192.3, enacted two years before Goulart, supra, 224 Cal.App.3d 71, but not discussed in that opinion, which does require a Harvey waiver under certain circumstances when restitution is imposed based on a dismissed count. But that statute, by its express terms, does not apply to a guilty or no contest plea to a serious felony as defined in section 1192.7. Attempted first degree burglary is such a serious felony. (§ 1192.7, subd. (c)(18), (39).) Thus, the statute does not apply to this case.
It has long been recognized that restitution “can be a valuable tool of rehabilitation.” (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748; see In re Brian S. (1982) 130 Cal.App.3d 523, 528-529.) “ ‘Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1124 (Carbajal), quoting Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10.)
Restitution as a condition of probation is not limited to the criminal conduct for which the defendant was convicted. (Carbajal, supra, 10 Cal.4th at pp. 1121-1125; People v. Lai (2006) 138 Cal.App.4th 1227, 1247-1248.) Restitution may be proper where the economic loss was not necessarily caused by the defendant’s criminal conduct, and even when the loss is traceable to uncharged or dismissed counts or charges on which a defendant is acquitted. (Carbajal, supra, 10 Cal.4th at p. 1121.) This is so because a broader scope of restitution may fulfill a salutary purpose of probation: the reformation and rehabilitation of the probationer by making amends to society for his conduct. (Id. at pp. 1121-1122.)
In In re I. M. (2005) 125 Cal.App.4th 1195 (I. M.), this court followed Carbajal and upheld restitution, as a reasonable condition of probation, for economic loss not directly caused by the defendant’s criminal conduct. The defendant in I. M. had been made a ward of the juvenile court for being an accessory after the fact to a murder. As a condition of probation, defendant was ordered to pay restitution to the murder victim’s family for the expenses of his funeral. (Id. at pp. 1199, 1208.) Defendant challenged the restitution order on the grounds that the family’s economic loss was the direct result of someone else’s criminal conduct, and that defendant’s criminal liability was based on conduct which occurred only after the family sustained the economic loss. (Id. at p. 1208.)
We rejected this argument, noting that the sentencing court has “broad power . . . to impose conditions to foster rehabilitation and to protect public safety. [Citation.] This power includes ordering restitution, if such a condition is reasonably related to the crime of which the defendant was convicted or to future criminality. [Citations.]” (I. M., supra, 125 Cal.App.4th at pp. 1208-1209.)
The restitution order is proper.
III. DISPOSITION
The judgment is affirmed.
We concur: Stein, J., Margulies, J.